521 F.2d 277 (D.C. Cir. 1975), 73-2024, In re Burrough's Estate

Docket Nº:73-2024.
Citation:521 F.2d 277
Party Name:In re ESTATE of Dorothy H. BURROUGH, Deceased. Ann Burrough (Donovan) CENNAMO, Appellant, v. AMERICAN SECURITY AND TRUST COMPANY et al.
Case Date:October 16, 1975
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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521 F.2d 277 (D.C. Cir. 1975)

In re ESTATE of Dorothy H. BURROUGH, Deceased.

Ann Burrough (Donovan) CENNAMO, Appellant,

v.

AMERICAN SECURITY AND TRUST COMPANY et al.

No. 73-2024.

United States Court of Appeals, District of Columbia Circuit

October 16, 1975

        Argued Sept. 16, 1974.

        Anthony D. Cennamo, Washington, D. C., for appellants. George R. Douglas, Jr., Washington, D. C., also entered an appearance for appellants.

        John L. Laskey, Naples, Fla., with whom Diane M. Sullivan, Washington, D. C., was on the brief for appellees Reiche as Guardian ad Litem.

        Benton C. Tolley, Jr., Washington, D. C., was on the brief for appellee, American Security and Trust Company.

        Before BAZELON, Chief Judge, and ROBINSON and MacKINNON, Circuit Judges.

        Opinion for the court filed by Circuit Judge MacKINNON.

        MacKINNON, Circuit Judge:

        This case involves the proper construction and effect to be given to a perpetuities saving clause in a will in light of its other provisions. Decedent died in 1969,

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survived by her daughter, the appellant. After making certain specific bequests, the will establishes a trust of the residue with appellant as the life beneficiary. 1

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Upon appellant's death, the trust is to terminate and the remainder is to be divided into shares, one share going to each child of appellant or its surviving descendants per stirpes and one additional share to be distributed among the then living descendants of decedent's niece. However, if any of these initial beneficiaries are under age 30 at appellant's death, that share is to be held in further trust until the beneficiary reaches 30. In the event an initial beneficiary dies before reaching age 30, the trust property is to be distributed to his descendants per stirpes. If any of these substituted beneficiaries is under age 21, his share is placed in further trust until he reaches 21. In the event a substituted beneficiary dies before age 21, his share of the trust corpus is to be distributed to his estate. Finally the will contains a perpetuities saving clause which provides:

Thirteenth: If any trust created hereunder shall violate any applicable rule against perpetuities, accumulations or any similar rule or law, my Trustee is hereby directed to terminate such trust on the date limited by such rule or law and thereupon the property held in such trust shall be distributed to the persons then entitled to share the income therefrom in the proportions in which they are then entitled to share such income, notwithstanding any provision of this will to the contrary.

        There is no question and no party contests the fact that in the will as written, absent the saving clause, both the 30 year trusts and the 21 year trusts violate the common law Rule against Perpetuities and D.C.Code § 45-102. 2 The district court elected to solve the problem by striking the provision for the 30 year trusts from the will. 3 The resulting scheme provides that the initial beneficiaries take outright unless under age 21. If any of these beneficiaries is under 21, his share is placed in further trust until he reaches 21. In case of death before age 21, the share is distributed to the beneficiary's estate. The court's scheme clearly complies with the Rule and is not an irrational method of disposing of the estate.

        However, the district court's solution materially alters the decedent's dispositive scheme in two ways. First, the time of taking by an initial beneficiary has been accelerated under certain circumstances. One example will suffice to show the effect of the district court's alterations. If a beneficiary is age 10 at the death of the life tenant, the will originally provided that he would receive the trust corpus at age 30, I. e., 20 years after the death of the measuring life in being. Under...

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